Felix J. Frankfurter (1882–1965)

Felix Frankfurter served on the U.S. Supreme Court from 1939 until 1962. Prior to his appointment to the Court, he held positions with the federal government, was a respected professor of law, and was a renowned civil libertarian. In school-related cases, Frankfurter joined in Supreme Court judgments supporting school desegregation and the separation of church and state. However, his philosophy of judicial restraint influenced him to uphold government actions that led to the curtailment of individual rights. Consequently, Frankfurter had critics, including Justices Hugo Black and William O. Douglas, who accused him of abandoning his liberal principles.

Early Years

Felix J. Frankfurter was born in Vienna, Austria, on November 15, 1882, and was the last Supreme Court justice born outside the United States. When he was 12 years old, his parents immigrated to America where he grew up in a Jewish tenement on the east side of New York City. Frankfurter graduated from the City College of New York and attended Harvard Law School, ranking first in his class. He was then hired by a New York law firm, but he soon left private practice for government service when he was appointed as an assistant in the U.S. Attorney’s office for the Southern District of New York in Manhattan.

Frankfurter worked closely with U.S. Attorney and future Secretary of War Henry Stimson, joining him in the War Department, where he served for four years as a legal officer in the Bureau of Insular Affairs. During World War I, Frankfurter was appointed assistant to the Secretary of War, served as secretary and counsel to President Woodrow Wilson’s mediation commission, and subsequently became chairman of the Labor Policies Board.

In 1914, Frankfurter was appointed to the faculty of Harvard Law School. He continued to teach at Harvard, with some interruptions, for the next 25 years. As an academic, Frankfurter developed a reputation as a scholar and expert in constitutional and administrative law. During his tenure at Harvard, Frankfurter developed a close working relationship with Supreme Court Justices Louis Brandeis and Oliver Wendell Holmes, and he funneled many of his best students into positions as law clerks for the justices. Frankfurter especially admired Justice Holmes, whose legal philosophy of “judicial restraint” profoundly influenced Frankfurter when he later became a justice himself.

Professor Frankfurter did not confine himself to academia. He was an active Zionist, helped found The New Republic magazine and the American Civil Liberties Union, and vigorously defended the cause of two anarchists accused of robbery and murder, Sacco and Vanzetti. Frankfurter was a staunch supporter of the New Deal, and became a confidant, friend, and adviser to President Franklin D. Roosevelt. After joining the Court, Frankfurter continued to advise Roosevelt on political and legal matters, a practice that was common at the time but that would appear to be a breach of judicial ethics today.

On the Bench

In 1938, Justice Benjamin Cardozo died. President Roosevelt, after overcoming concerns that Frankfurter was too liberal and had no judicial experience, and that his appointment would create a Court with an excessive number of Jewish justices, nominated Frankfurter to fill the vacancy. Frankfurter was only the second nominee to the Supreme Court in history to testify in person before the Senate Judiciary Committee. He rebutted personal attacks and unfounded allegations that he was a Communist, but he did not answer questions about his views on specific legal issues. The Senate confirmed Frankfurter’s appointment on January 17, 1939.

Although he was politically liberal, Frankfurter’s restricted view of the role of judges and courts led him to vote frequently to uphold government actions that limited individual rights and liberties. An early indication of Frankfurter’s jurisprudence can be found in Railroad Commission of Texas v. Pullman Company (1941), where, writing for the Court, he formulated the Pullman abstention doctrine. Under this doctrine, federal courts, while still retaining jurisdiction, could abstain from hearing cases involving constitutional or statutory questions while providing state courts with opportunities to first address and resolve the issues. In Pullman, the petitioners challenged a state agency rule requiring sleeping cars on trains to be staffed by conductors, all of whom were White, rather than by Black porters, as violating their right to equal protection under the Fourteenth Amendment.

Perhaps in part because of his immigrant status and successful embodiment of the American dream, Justice Frankfurter was a patriot who believed in defending the United States from perceived disloyalty and attack. In Korematsu v. United States (1944), he concurred in the Court’s opinion upholding the relocation and internment of Japanese Americans during World War II. In Dennis v. United States (1951), he again concurred in the Court’s affirming the conviction of leaders of the Communist Party for conspiring and organizing to overthrow the government of the United States in violation of the Smith Act, despite claims that the act violated the First Amendment.

Justice Frankfurter believed that the Supreme Court should not become embroiled in controversies that were not capable of judicial resolution and where attempted enforcement would harm its legitimacy as a neutral decision-maker. He wrote the opinion of the Court in Colegrove v. Green (1946), holding that the apportionment of Illinois congressional districts was a nonjusticiable political question, and he strongly dissented in Baker v. Carr (1962), where the Court decided that the issue of malapportionment of the Tennessee state legislature was justiciable under the Equal Protection Clause of the Fourteenth Amendment.

Frankfurter’s ideological feud with fellow Justice Hugo Black became legendary. While Black thought that the Court should take an active role in protecting the rights of minorities and accused criminals, Frankfurter believed that the Court should defer when possible to the will of popularly elected legislatures and executives. Black strongly advocated that the protection of the U.S. Bill of Rights be totally incorporated under the Fourteenth Amendment and applied to the states. In contrast, Frankfurter believed that only those rights deemed “fundamental” by the Court should be incorporated and on a selective, case-by-case basis.

Justices Black, Douglas, and Frankfurter were all New Dealers appointed by President Franklin D. Roosevelt. Yet, over the years, they formed the axis of two separate blocks on the Court. Black and Douglas viewed Frankfurter as a traitor to the cause of liberalism, while Frankfurter criticized Black and Douglas as often acting like politicians rather than judges. Although they disagreed philosophically, Frankfurter respected Black and Douglas intellectually. Further, Frankfurter could be rude and condescending to fellow justices he considered intellectually inferior. At conference, he would often lecture his colleagues as if they were students in his classroom. After one heated confrontation in conference, Chief Justice Fred Vinson threatened to punch Frankfurter.

Record on Education

Frankfurter’s patriotism and philosophy of judicial restraint merged in what probably is his best-known decision in the law of education, Minersville School District v. Gobitis (1940). Justice Frankfurter wrote the majority opinion of the Court upholding the expulsion of Jehovah’s Witness students from school for refusing to comply with the Pennsylvania mandatory flag salute law. Three years later, when patriotic fervor in the United States after World War II had subsided somewhat and the opinion had been widely criticized in legal circles, the Court overturned Gobitis, with Frankfurter dissenting, in West Virginia State Board of Education v. Barnette (1943).

Even though Justice Frankfurter often voted to uphold conservative laws, he never completely abandoned his liberal roots. He joined the Court’s opinion in Brown v. Board of Education of Topeka (1954) and supported the Warren Court’s major school desegregation decisions. Even so, typical of his concern that the Court not go beyond what was judicially enforceable, in Brown v. Board of Education of Topeka II (1955), Frankfurter convinced the Court to insert the phrase that, in implementing desegregation, states should proceed “with all deliberate speed.”

Frankfurter was a proponent of separation of church and state. In Everson v. Board of Education of Ewing Township (1947), where the Supreme Court first incorporated the Establishment Clause of the First Amendment and applied it to the states, he concurred in the Court’s analysis and history of the Establishment Clause erecting a “wall of separation between Church and State.” Still, unlike the majority, he maintained that the New Jersey policy of reimbursing parents for the costs of transporting their children to parochial schools violated the First Amendment. Frankfurter also opposed “released time” for public school students to receive religious instruction during school hours, regardless of whether the instruction took place on or off campus. He concurred in the Court’s opinion in People of the State of Illinois ex rel. McCollum v. Board of Education of School District 71, Champagne (1948), prohibiting released time programs in public schools while dissenting in Zorach v. Clauson’s (1952) permitting such programs if conducted off campus at churches or religious schools.

Suffering from declining health, Justice Frankfurter resigned from the Court in 1962, and he died on February 22, 1965, at the age of 82. At the time of his death, Frankfurter and Justice Black had reconciled many of their differences, and they ended their lives as friends.

Felix Frankfurter possessed a towering intellect and was one of the leading jurists of his time. His admirers respected him for his brilliance, his well-crafted opinions, and his restrained view that judges should primarily be interpreters of the law, not lawmakers. Frankfurter’s critics found him to be pompous and often overbearing and a man whose personality and cramped view of constitutionally protected rights and liberties limited his effectiveness as a justice.